ML20244A771
| ML20244A771 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 07/31/1984 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| Shared Package | |
| ML20097F079 | List:
|
| References | |
| FOIA-84-487 NUDOCS 8906120140 | |
| Download: ML20244A771 (45) | |
Text
~
~
ORIGINAL u
UNITED STATES OF AMERICA
/
NUCLEAR REGULATORY COMMISSION In the matter of:
TEXAS UTILITIES ELECTRIC COMPANY, et'al Docket No.5 0-4 45-2 50-446-2 (Comanche Peak Steam Electric Station, Units 1 & 2)
~
g & AptE$f
~
i.
(
Telephoner; Conference la
~
Location: Glen Rose, Texas Pages: 38,655 - 38,689 Date: Tuesday, July 31, 1984 ql a b \\' L) copy yo $$Lf M L' I cofy to ASLB E906120140 890607 PDR FOIA CA.bh,, O m car ' pp I
HUGE 84-487 PDR
,JiSOCIATES Court Reporters 1625 i Strwt N.W. Swee t004 Wuhington, D.C. 20006 j
l (202) 293-M$0 i
l
\\L
)
c..
i:L. -
p 38,655.
t i
L 1
UNITED. STATES-OF AMERICA-i-
NUCLEAR l REGULATORY. COMMISSION
~
-- 2 l t
BEFORE THE ATOMIC SAFETY & LICENSING BOARD J i
^
5-x-
- In the matter-of:
TEXAS OTILITIES-ELECTRIC 7'
COMPANY, e t. a l...
- Docket Nos. 50-445:
g 50-446-3 (Comanche Peak' Steam-E?ectric oi Station', U n i t s.- 1 and 2)
]
_x l
10 j 1
Glen Rose" Motor Inn y.l -
Glen Rose, Texas i
.,3]
July-31,;1984 14 Deposition ~of:
Telephone Conference 15 te>j called by examination by counset fo.r Applicant l
taken before Sandra Harden Court Reporter, y
- s !
beginning at 9:39 a.m.,
pursuan: to agreement.
,, s
.i
- g.
t n
21 i i
22 l i
23 '
l 2J 25 l
N.
I j.-
38,.656 l
l' APPEARANCES:
2 For the Applicants,_ Texas Utilities Electric l
Company, et al:
J 3
BRUCE DOWNEY, ESQUIRE 4
MARK L.
DAVIDSON, ESQUIRE Bishop, Liberman, Cook, Purcell & Reynolds 5
1200 Seventeenth Street, Northwest Washington, D.
C.
20036 6
For the Nuclear Regulatory Commission Staff:
7 GEARY S. MIZUNO, ESQUIRE 8
RICHARD G. BACHMANN, ESQUIRE i-Office of the Executive Legal Director l
9 U.S.
Nuclear Regulatory Commission i
Washington, D.
C.
20555 10 For the Intervenor, Citizens Association for Sound 11 Energy:
12 ANTHONY Z.
ROISMAN, ESQUIRE Executive Director 13 Trial Lawyers for Public Justice, P.C.
2000 P Street, Northwest, Suite 611 14 Washington, D.
C.
20036 15 16 17 i
18 19 20 21 1
22 l
23 24 25 l
'38,657 1
PROCEEDINGS 2
9:39 a.m.
3 JUDGE BLOCH:
Good morning.. This is Peter 4
Bloch, Chairman of the Licensing Board for the Comanche.
5 Steam Electric Station Case, Docket No. 50-445-2 and 50-446-2.
6 This conference call has been called at the 7
request of the parties.
The subject matters,-briefly stated, l
1 8 1 are:
1 9
Number one, refusal of Witness "F"
to disclose to-the names of the individuals on the request of the Applicant.
I 11 And second, question about the scope of j
12 evidence that the Applicants may be permitted to present l
13 in light of the Board's previous-rulings on Mr. Hamilton, 14 which consist of a determination-in this case.
15 Would the parties please identiff themselves 16 for the record?
First, for the Applicant.
17 MR. DOWNEY:
Your Honor, this is Bruce i
18 i Downey for the Applicant,.and with me is my law partner 19 Mark Davidson and also in the room is General Counsel of 20 TUGCO, Robert Wooldridge.
21 Your Honor, before we go on, I think I would l
22 like to suggest that the statement of the issue concerning i
1 23 Witness "F" by the Court was not quite correct.
l 24 It's that Mr.
"F" has refused to waive his i
25 confidentiality and permit us to interview certain witnesses l
38,658
'I who, we believe, may have some information pertinent to his 2
claim.
3 MR. MIZUNO:
This is Mr. Mizuno.
4 JUDGE BLOCH:
Please continue, Mr. Mizuno.
l 5
MR. MIZUNO:
Yes, I'm identifying myself.
6 JUDGE BLOCH:
I don't understand.
I thought 7
the trouble was the witness would not give you names that 8
you need so that you can conduct those other interviews.
9 MR. DOWNEY:
No, Your Honor.
We have the 10 names from his deposition testimony.
He will not permit us i
11 to interview those witnesses, even if they consent to the t
protective order which the Board has entered in this
-l 12 i
l 13 proceeding.
14 Our proposal is to take the protective order 15 to the witnesses, ask them to sign it, and then interview 16 them about his claims.
17 He has refused, even, to do that, 18 JUDGE BLOCH:
And the claim is that under 19 the protective order, he's got the right to forbid you'to 20 use that to speak to the people he mentioned?
21 MR. DOWNEY:
That's correct.
22 JUDGE BLOCH:
Okay.
Now, for the Interveners, 23 who's present, please?
24 MR. ROISMAN:
Mr. Roisman, Mr. Chairman.
25 JUDGE BLOCH:
For Staff.
38,659 1
MR. MIZUNO:
This is Mr. Mizuno, and with me 2
is Richard Bachmann.
3 JUDGE BLOCH:
'Okay.
On the first issue, it sounds to me as if the first argument should be made,by 4
5 Mr. Roisman since the question is what right does his client 6
have on this matter, i
7 MR. ROISMAN:
Yes,-Mr. Chairman.
l 8
The concern of Witness "F" is that the number j' 9
l of individuals that the Applicant wishes to disclose his 10 participation in this proceeding to in order to prepare 11 their case is large.
It's five names, j
i 12 And.--
I'm sorry.
Mr. Davidson is telling me 13 it's six names.
I 14 And that he is concerned--
I mean, that his 15 concern has been all along with the problem of being black-16 balled in the nuclear industry and that he is, as you may 1
17 know, has filed a Department of Labor complaint about that 18 very issue regarding subsequent employment that he sought 19 and thought he had'after he left this plant site and then j
20 later lost, and he believes because he was involved in l
1 l
21 reporting problems at this plant site.
I 22 So, he's very nervous and concerned about i
- 23 the problem.
24 We have suggested what I think is a middle 25 ground here, but it has not been accepted _by the Applicants.
38,660-i 1
Since the witness is already talking to 2
_the Department of Labor and since these events'that are the 3
subject of this proceeding are inevitably going to be
]
1 l
-4 investigated in the course of the Department of Labor j
)
5 proceeding, we felt that the witness's major concern was, 6
and that he felt it made a marked difference in terms of 7
his future employability in-the nuclear industry, over 8
whether it appeared that he had been a witness here.
l 9
And so, we proposed to the Applicant that the 10 individuals that they wished to talk to about this matter 11 go ahead and sign the protective order but that it not be 12 disclosed to those individuals that Witness "F" was a witness 13 in this proceeding, that they simply indicate that this i
l information has been raised in the licensing proceeding; 14 l
that, if necessary, they show portions of depositions _and 15 16 affi--
there a>' ro iffidavits that have been submitted here that were'not submitted in other contexts, in any event; 17 18 but that they not say that Witness "F" has come forward and 19 been a witness in this proceeding.
20 And that is, admittedly, beyond what the 21 protective order now provides.
So, that's sort of the l
22 sticking point.
l 23 If we can do that, if we can provide th.'.
24 additional level of protection for him, then any further 25 objection could be waived.
38,661 1
JUDGE BLOCH:
-Mr.
Roisman,_it's difficult to 2
be fully familiar ~with Withness "F's" testimony, but the 3
flavor that'I have is that his principal concern is that he-raised some valid technical concerns which were not adequately 1
5 responded to.
6 Were there, in addition, situations in which 7
he alleged actual intimidation or harassment'of him?
i 8
MR. DAVIDSON:
Your Honor, my name is Mark 2
9' Davidson, and I was a participant in that deposition.
And~
i 10 I am familiar with the testimony.
11 JUDGE BLOCH:
Well, let me have Mr. Roisman l
12 answer first.
l' 13 MR. DAVIDSON:
I'm sorry.
14 JUDGE BLOCH:
The Applicant can answer that.
)
15 MR. ROISMAN:
Actually, Mr. Chairman, I was,
)
16 in this instance, surprisingly enough, going to let Mr.
17 Davidson answer.
I did not participate in that deposition j
i
(
18 and have not seen the transcript of it since it was not yet i
i 19 in the Public Document Room.
I 1
20 JUDGE BLOCH:
Mr. Davidson?
21 MR. DAVIDSON:
Your Honor, the witness did, l
22 in fact, make several allegations of specific instances in which he alleged that he had been subjected to harassment, 23 24 intimidation, and threatening.
25 JUDGE BLOCH:
In the evidentiary portion of O
38,662 I
the transcript?-
2 MR. DAVIDSON:
I believe that is correct, 3
Your Honor.
4 He indicated that, as a consequence ~cf having 5
raised these.tehenical concerns and not having been,-in his 6
view, properly satisfied, that he thereafter was subjected 7
to--
And he quoted some precise language in his deposition 8
testimony based on notes he had with him.
--that he had been 9
subjected to specific statements which he claimed " insinuated to upon his job".
I 11 And he made mention six specif'ic names who l
12 had engaged in making these statements or confirming them to 13 him during the course of his employment.
The names he men-14 l
tioned and the people he said were involved in these i
15 incidents, Your Honor, were Dick Camp, Ken Luken, Tom Miller, 16 Art London, Fred Powers, and Ivan Vogelsank.
II He alleged that Mr. Vogelsank threatened his 18 job.
He alleged that Mr. Powers threatened his job.
He 19 alleged that Mr. Luken did so and he also alleged that Mr.
20 London stated that if he had so much time to find all these 21 "probi. is ", then he had time to do more work.
22 And I think that, plainly, in order for us
{
23 i
to prepare our case and the cross that is to be anticipated I
24 here, obviously, would have to reveal the substance of his 25 testimony and the statements he's made and review the i
)
38,663 1
deposition transcript with these individuals so that we 2
would have both adequate cross and would be able to decide l
3 and prepare' rebuttal testimony, if necessary.
j 4
JUDGE BLOCH:
Mr. Roisman, isn't this, in 5
principal, correct?
6 MR. ROISMAN:
- Yes, I' don't quarrel with 7
j their interest in having the information, Mr. Chairman.
8 The only question is whether or not, in i
I 9
getting that information, it is necessary to reveal to the 10 peop)e to whom they're talking that the source of this l
11 information from Witness "F"
is his participation as a l
12 witnesa in this proceeding.
I i
13 l
JUDGE BLOCH:
In other words, you're willing 14 to allcw them to state that there's an allegation that they
.)
15 ;
said certain things to Witness "F"
and to disclose the full-
)
l l
J 16 context in which that was said?
j 17 MR. ROISMAN:
Yes.
18 JUDGE BLOCH:
But that they should not, at 19 l
the same time, disclose that Witness "F" was, in fact, a l
l 20 {
witness.
21 MR. ROISMAN:
That is correct.
1 22 JUDGE BLOCH:
All right.
Now, stated that-I 23 way, Mr. Davidson and Mr. Downey, what's the harm to the I
24 Applicant?
25 i
MR. DOWNEY:
Your Honor, I think there are i
1
38,664 1
at least three points to make in response to that.
2
'First, so far as I know, there is no indica-3 tion that Mr.
"F" has consented to this arrangement that's 4
been proposed by Mr. Roisman and_that--
5 JUDGE BLOCH:
Mr. Roisman, do you know whether 6
he's consented to this?
7 MR. ROISMAN:
He has.
I l
8 MR. DOWNEY:
Second, it would deprive us of 9
the opportunity to put before these witnesses--
or, these-10 potential witnesses the transcript of the deposition and 11 the statements made by Witness "F", which he has alleged to 12 be direct quotes of these individuals.
l-!
13 I think it would substantially prejudice our ability to prepare a rebuttal case and prepare to adequately 14 15 cross-examine Witness "F".
16 It's simply a case, I think, Your Honor., where 17 Witness "F" who, by the way, by admission, has gone public 18 with his complaints, at least with respect to one company.
19 But it's a situation where Witness "F" wishes to make 20 statements and allegations implicating six individuals in 21 this conduct and then deprive us of the opportunity to fully 22 investigate and address those allegations and, indeed, it 23 deprives these persons, alleged to have engaged in this 24 conduct, of the opportunity to present their side of the 25 story in an open and full manner.
1 38,665' 1
JUDGE BLOCH:
Mr. Downey, you would not be
{
2 deprived of the opportunity of asking them about the specific 3
circumstances or the words used nor, indeed, in informing 4
them of the context in which it arises, that is, the technical 5
matters that were raised.
6 The only thing you'd be deprived of would 7
be the right of telling them that the person who raised.those 8
was Witness "F"?
9 I don't understand your problem.
l 10 MR. DOWNEY:
Well, my prob?'m, basically, 4
11 Your Honor, is that this man has testified to very specific t
12 points, and--
i 13 JUDGE BLOCH:
Well, you can use those, though.
l 1
- 14 The specific points are going to be able to be presented by i
15 you to the witnesses.
You could either do it in a statement 16 form that you write up that reflects the record, or you I
17 can do it orally in terms of the questions you ask.
You 1
18 actually ask the specific things and have them respond point 3
i 19 by point.
I 20 And you can also ask the general thing, the 21 overall picture that was presented.
.I don't understand why 22 they have to know the man was a witness.
23 MR. DOWNEY:
Well, they necessarily are going 24 to learn that he was a witness, Your Honor, in the ccurse 1
25 of these interviews and if they're called to testify.
i l
l 1
38,666 1
JUDGE BLOCH:
Why?
It could have come from 2
a lot of different people, instead of this particular 3
person.
4 The allegations are there, but what matter 5
is it as to who it came from?
6 MR. DAVIDSON:
Chairman Bloch, this is 7
l Mark Davidson again.
i g
i JUDGE BLOCH:
Yes, sir.
9 MR. DAVIDSON:
And I think I understand your to i
point, and there certainly is some merit to it, Your Honor.
N 11
?
The prcblem I have with it is that it simoly is in contradiction both to the assurance of confidentiality 12 i
13
'i that the witness received and, more significantly, to the order that has been entered.
14 4
i 15 JUDGE BLOCH:
But he's been willing to waive 16 P
it, according to counsel for CASE.
The only thing he wants t
Ij to have done is to make sure that these people don't know 17 il 18 l
that he was, personally, a witness.
l 19 P1R. DAVIDSON:
No.
All I'm saying, Your I
20 Honor, is that we would have to modify the order in this 21 case because the order, which I signed and I believe all i
22 those in this room signed, restricts us from using any of i
23 this information, except in the context of this proceeding 24 and also enjoins those who would sign it, that is, the 25 witnesses we would show it to, to exclusively using this I
it i
38,667:
l l
1 information in the context of this proceeding.
l 2
JUDGE BLOCH:
You want to create rights, 3
and rights can be waived, and the-Board can issue an order.
'1 4
MR. DAVIDSON:. I'take it'then, Your Honor,
(
5 that we would not be in violation of the order in under-6 taking this compromise.
7 JUDGE.BLOCH:
Right.
The only thing you 'd -
8 be in violation of would be Lif you release to the people.
9 the specific information that this witness was a witness i
i 10.
in this proceeding.
1 l
11 What the allegations are can be released in i
u detail.
13 MR. DAVIDSON:
And, Your Honor, will we.be' 14 i
able to show the witnesses the exhibits and the deposition 15 statements that were made by the witness?
~l a
16 JUDGE BLOCH:
I think that from what I've 17 seen of them the statements with the.name:of the witness
}
l 18 taken off would not reveal who is identity is--
Let me' i
3 l
19 see.
It might.
There might be portions.of it.
J'
~
You'd have to look at it to see whether there
. 21 are portions that have no function,.other than to reveal 22 the identity of the person, but you're going to be able 23 to talk to them about spe7ific dates and times.
i 24 MR. DAVIDSON:
Well, the identity will be 1
25 made known to them, Your-Honor.
I think'that's not an-1ssue i
{
_-__ LA
38,668 1
here.
2 JUDGE BLOCH:
The identity of the person who is alleged to have had the contact will be revealed, that's 3
4 correct.
But the only thing they won't be specifically 5
told is that he spoke to this Board or testified on the 6
- record, t
l 7
MR. DAVIDSON:
Understood, Your Honor.
8 I
But we are otherwise free to prepare them t'
n 9
f with the discovery deposition, the exhibits, and the other 10 h matters that have been entered here.
l 0
11 l
JUDGE BLOCH:
It sounds to me like on this i
i 12 l basis the Applicants can agree.
Do you agree now with f
13 what seems to be the understanding?
l l
14 i
MR. ROISMAN:
If I'm clear on the understanding, 15 Mr. Chairman.
If I understand that the process would be 16 as follows:
1 I
17 That the individuals, six people who the l
l l
Applicant has identified, would sign the crotective order 18 i
19 with the additional caveat to be added in in whatever words 20 !
is agreed upon and that the Board is willing to have, that 21 the person--
well,--
22 TUDGE BLOCH:
The initial caveat really doesn't have to do with their obligation.
23 i
24 MR. ROISMAN:
That's right.
It has to do with the obligation of the people who have already signed 25
38,669 1
the protective order that they will not disclose to these 2
six individuals that this person was a witness in this 3
proceeding, but that they are free to disclose to these individuals that these allegations relate to this person, 4
5 who this person-is, what it was that he did, and to show 6
them whatever piecos of information are necessary, so long i
I 7
{
the showing of those pieces of information does not have as i
I 8
the unavoidable consequence of them learning that he, in f
fact,- was a witness'in the proceeding, 9
N Thats correct.
We would, l
ll JUDGE BLOCH:
10 d
h therefore, rely heavily on the integrity of Applicants '
11
!I 12 I
lawyers to attempt to fulfill that because we understand 13 l
that it is a very narrow.line being drawn here between the t'
14 fact that there are allegations about specific individuals
)
i i
i 15 and the fact that he was a witness that testified.
16 MR. BACHMANN:
Judge Bloch, this is Richard l
3 i
17 Bachmann.
1 i
18 I have one small problem with what Mr. Roisman i
19 just related to you and what you agreed with, and'that is 20 the presence of the NRC attorneys is unavoidable.
And this I
21 has not yet been discussed.
And I would like either Mr.
22 Roisman or Mr. Downey tc address that on how that would be l
i 23 handled.
24 JUDGE BLOCH:
That's not necessary.
The 25 attorneys for the NRC can be present, and the NRC attorney.
38.670 1
will be bound by the same agreement, that he would not 2
disclose that this witness has.been a witness before the 3
Board.
4 MR. DOWNEY:
Your Honor, this is Bruce 5
Downey again.
6 JUDGE BLOCH:
Yes, sir.
7 MR. DOWNEY:
It seems to me the direction l
l 8
in which the Board is heading, _and I guess the parties'are l
9 heading, is that necessarily the kind of. disclosure that 10 is now permitted or contemplated being permitted by the i
11 Board would necessarily reveal to any. thinking witness, 12 any thinking person that we interviewed, preciselv the information that Mr. Roisman seeks to--
or, Mr.
"F" seeks 13 14 to avoid being disclosed.
And that is, if we interview i
i the witness concerning--
or, interview witnesses concerning '
15 4
16 allegations of harassment and intimidation five miles from l
the site where hearings on those very issues are going on, 1
17 i
if we produce witnesses to rebut his testimony in a proceed-18 i
i 19 ing where their depositions will be taken, where they will I
realize the context in which they're testifying, and they 20 21 certainly will realize by the presence of the NRC Staff 4
22 counsel the nature of what the proceeding is, any thinking 23 witness will realize precisely why they are there.
i 24 JUDGE BLOCH:
Wait a second.
You're not x,
25 going to conceal from these witnesses that they are h
38,671 1
witnesses before an NRC proceeding--
2 MR. DOWNEY:
No.
3 I
JUDGE BLOCH:
--under bench warrant.
4 And you are correct that they may very easily l
5 draw the inference that there was testimony about these f
6 instances and that it likely was the person involved, but 7
they won't ever know for sure because the testimony could j
t 8
have come from four or five different people who thought 3
l 0l 9
that they saw these incidents take place.
And this particular 1
10 j
person may never have testified.
That amount of uncertainty j
)
l 11 g
will be left with them under the understanding of the parties.
i
!I 12 l
Not a lot; best we can do.
So, let's do it.
j t
13 That is the order of the Board.
I 14 Let's go on to the next matter.
15 t
MR. DOWNEY:
The second matter, Your Honor, 16 concerns the issues raised by Bob Hamilton in his written i
}
17 testimony submitted to the Board last summer, and the 1
18
[
Board's resolution of the issue raised in that testimor 1
19 As the Chairman might' recall, Mr. Hamilton 20 testified on a technical issue and included in his written 21 testimony on that subject were some allegations that he had 22 been terminated improperly and for reporting deficiencies in 23 the coating systems at Comanche Peak.
l f
24 In a proposed order, the Board indicated 25 that his issue, the issue of whether he was harassed, was I
38,672 1
to be an open issue, and the Applicant objected to some 2
language that was in the' Board's order.
The Board recon-3 sidered its preliminary decision based on those objections; 4
reaffirmed that its preliminary view was that Mr. Hamilton l
5 had somehow been improperly terminated, and a second motion l
6 for reconsideration was filed, which was denied.
l l
I 7.
Our basic point, Your Honor, is that we very l
l 8
much feel obligated to present the second side of the Bob 9
Hamilton story.
i 10 To date, the Board has heard onlv one side i
l 11 of that story, that by Mr. Hamilton.
We have substantial 12 evidence to show that he was terminated under circumstances 13 under which any reaso'nable employer would have terminated 14 him, that his termination and the terminations of Mr. Prolak 15 l and Mr. Sheldon were completely unrelated to any NCR's i
l I
16
~
or any IR's they may have written.
1 I
l 17 And we have specific testimony that will
{
18 refute, I think, conclusively, some of the allegations l
19 raised by Mr. Hamilton.
i
)
N What our deep concern is, Your Honor, is 21 that as the record stands now and the state of the Board's 22 ruling stand now, there is a decision that this man was 23 intimidated and ultimately fired, but that decision was 24 rendered without Applicants putting on any evidence whatso-25 ever concerning these issues.
38,673 1
We have prepared testimony,.Your Honor, of 2
witnesses who, we think, will demonstrate conclusively 3
that Mr. Hamilton was fired for good cause and that there is 4
no inference of intimidation that could fairly be drawn-f 5
.from the circumstances surrounding his termination.
6 I would add, Your Honor, that--
7 j
JUDGE BLOCH:
.You alraady had one motion for l
l 8
reconsideration on this and we denied it?' Our usual rule 9
is to stop right there.
j i
10 Could you tell me why the Applicants didn't f
3 11 have an opportunity the first time to present this evidence?
12 I understand they didn't, but they had an opportunity, didn't!
13 they?
14 MR. DOWNEY:
Not really, Your Honor.
At the i
15 time Mr. Hamilton's written testimony was-submitted, the l
issue of harassment and intimidation and the issue of the 16 1 i
17 quality control / quality assurance program was'not being 18 litigated and, indeed, the Board acknowledged that fact in 1
its initial decision--
or, proposed decision on the issue 19 l
and said that it would be an open--
the Hamilton termination 20 j
21 would be an.open issue precisely for that point.
22 And I would add, Your Honcr, that to date 23 only one neutral party has investigated--
well, actually, 24 two neutral parties have looked into both sides of this 25 issue, the Office of the Department of Labor OSHA Investigator
l
~
38,674 1
but more importantly, the resident NRC inspector.
And he 2
looked into both sides of this story.
Indeed, his report 3
is an outline of our direct case on Mr. Hamilton's claim.
4 And after looking into both sides of the 5
issue, the NRC resident inspector concluded that there was l
6 no basis for inferring that Mr. Hamilton was, in any way, f
i 7
badly treated by the company.
l 8
And we would like to have the opportunity to 9
put that same evidence before the Board and have the Board i
1 t
10 render a decision on the issues raised by Mr. Hamilton on i
11 a complete record.
12 l
To respond to your specific question, Your l
]
Honor, we didn't put on evidence about his allegation of l'
13 14 i
harassment because, in our judgment, and, indeed, in the l
15 Board's judgment, that issue was not ripe for adjudication.
l 16 !
JUDGE BLOCH:
At that point that the hearing j
l 17 l was held on that matter, the Board had ruled that it wasn't 18 l
right?
l 19 MR. DOWNEY:
The Board, Your Honor, in its l
l l
initial decision on the--
20 1'
21 JUDGE BLOCH:
I know that.
We had two 22 decisions.
Do you keep going back to the proposed decision, 23 which we modified subsequently and that you then move for 24 reconsideration of?
25 MR. DOWNEY:
That's correct.
38,675:
1 l
l 1
But at no time during the consideration of 2
these various motions did the Applicants put on evidence, l
l 3
nor were they invited.to put on evidence by.the Board.
t 4
It was a case where the issue before'the 5
Board being' litigated at the time had to do with technical-6 issues in the case.
It was not--
The hearings being held
{
7 and the decisions being rendered were not in connection with_j 8
the allegations of harassment and intimidation.
9 JUDGE BLOCH:
One of the technical issues to that was clearly being discussed was whether it was an l
11 unsafe workplace, which has nothing to do with quality in 12 itself.
That was among these things.
13 The more important thing seems to me to be 14 whether the cause of his being fired had to do with his 15 reporting deficiencies, and that was clearly stated in!the 16 testimony.
That was an allegation that was.in the record i
1 17 and that you didn't respond to.
18 I don't understand this.
But iftherereally[
l is a miscarriage of justice, why don't you file an offer 19 20 of proof, and we'll see if we want to take a look at it 21 again.
22 But I don't see how you can wait until these 23 depositions and challenge a direct ruling of the Board in 24 this way, nne 25 You file an offer of-proof, and if there's I
30,676:
1 enough injustice, we'can always reconsider in our. discretion.
2 MR. DOWNEY:- Your Honor, I would raise one 3
additional' point, and I'm not sure of the state of the 4
record on this point, 5
i Mr. Krolak, who was also implicated in Mr.
6 Hamilton's-testimony as having been harassed and intimidated i
and ultimately fired for refusing to _ walk 1the rail, or make i
8 this inspection,' testified about these~ matters in'this-1 9
proceeding.
I 10 Mr. Roisman, upon learning that he had done l
l so, offered to withdraw Mr. Krolak's testimony.
I don't i
11 12 h know if that withdrawal still stands.
I i
13 ~
MR. ROISMAN:
It does.
14 JUDGE BLOCH:
Mr. Roisman said, "It does"?
1 15 MR. DOWNEY:
Yes.
i 16 i
Your Honor, our proposal would be on the l
17 l
offer of proof, and, again, I must emphasize, I think that i
)
l anything short of a full hearing on this issue would 18 19 constitute a deprivation of our due process rights to pre-20 l
sent evidence on this point.
21 But the offer of proof we would propose to 22 present in testimonial form with the witnesses before the 23 Court Reporter and, basically, put on the direct evidence.
I 1
24
..m l
JUDGE BLOCH:. Mr. Roisman, I, don't understand 25 your current position on Mr. Krolak.
We had no findings on l
1 I
38,677 J
t 1
his discharge.
Are you going to present allegations about 1
2 Mr. Krolak's discharge or not?
3 MR. ROISMAN:
No, we are not, Mr. Chairman.
~
\\
He had other allegations, which we are presenting.
4 But 5
with regard to his discharge, we are presenting none.
6 JUDGE BLOCH:
It.seems to me, Mr. Downey, it's directly related to the other question, and we'll l
7 l
8 have to'look at it in the context of your offer of proof.
9 MR. DOWNEY:
I'm sorry.
I didn't understand 10 your question.
11 As I understand Mr. Roisman's concession, 12 the issue of whether Mr. Krolak was, in any way, improperly 13 terminated has now been withdrawn., and there is no issue 14 before the Board concerning Mr. Krolak, t
15 JUDGE BLOCH:
.S o, therefore, there is no i
l l
16 reason for you to be able to rebut'it.
t I
17 MR. DONNEY:
That's correct.
i I
18 I just wanted to clarify that that was' the 19 state of the record and that Mr. Roisman had, indeed, with-i drawn any contention concerning the termination of Mr. Krolak--
m 21 any contentions concerning his termination.
22 JUDGE BLOCH:
But the procedure that we're 23 going to follow is that you're going to file an offer of 24 proof, which will state what you think you can show with evidence and why a miscarriage of justice will occur if the 25 l
___-________-w
38,'678 f
1 Board sticks to its previous ruling after the motion for 2
reconsideration.
3 If we think that there's a chance that we'll 1
4 act favorably on that' motion, we will then notify Mr.
{
5 Roisman and the Staff so that they'll have an opportunity 6
to file before we act on the motion.
7 MR. MIZUNO:
Chairman Bloch?
i 1
8 JUDGE BLOCH:
Yes, Mr. Mizuno.
9 MR. MIZUNO:
May I make my points now?
l 1
l 10 MR, BACHMANN:
Before you rule, sir.
11 JUDGE BLOCH:
Yes, assuming that you have 3
l 12 an important point for us to act on, i
i 13 MR. MIZUNO:
Yes.
As you know, the Staff l
t l
opposed the Applicant's motion for reconsideration at the j
14 l
15
[
time.
But we specifically said that the Applicants should 4
i 16 be free to present additional evidence in the future.
j l
17 Our concern at the time when the Applicants l
1 18 filed the original motion for reconsideration was that they j
19 did not offer any--
they did not make any offer of proof 20 of new evidence to be shown.
We just had some legal 21 arguments.
22 When the Staff opposed the motion for 23 reconsideration, it was on that basis.
We did not think, 1
24 at the time, that we would be precluding the Applicants 1
25 from presenting significant, new information on the discharge
_______L--
38,679 1-of Mr. Hamilton, provided that the Applicants could show 2
that the information that they wanted to.present was 3
significant.and went'to the--
went directly to the question 4
of whether Mr. Hamilton had'been discharged or not.
5 The Staff believes that the Applicants were 6
free to do that.
t 7
And.that perception of the Staff--
That Y
l 8 j position'of the Staff has remained constant from July of j
9 1983 all through this time.
i l
JUDGE BLOCH:
So, why af ter they moved for'
[
10 11 reconsideration without a showing of proof, they be able 12 h to challenge that order now after their motion'for reconsider-0 13 ation was denied?
l
?
14 l
MR. MIZUNO:
Because they are now in the 15 position of being able to present that evidence.
l i
16 JUDGE BLOCH:
They were always in that 1
17 position.
18 !
MR. MIZUNO:
I believe that the--
If you're
-l t
19 talking about the delay of time, I believe you will' recall 20 i that, as Mr. Davidson has correctly stated, the whole focus 21 of the proceeding in 1983, through '82 and into 1983, was 1
22 purely on technical issues.
Intimidation really wasn't an l
23 issue until we got past the Board's initial decision, proposed 24 initial decision.
b 25 JUDGE BLOCH:
Was that a technical issue, l
1 a
38,680' 1
like someone'was fired because the workplace.was unsafe?
2 I mean, that's a technical issue.
Why'is this business 3
about being fired because you're reporting-deficiencies, which was clearly raised by Mr. Hamilton's testimony, any 4
5 more excluded than whether or not he was fired because the 6
.workplace was unsafe?
~
MR. MIZUNO:
I~believe that the Applicants--
1.
8 The way that the issue was' litigated'and the kind of
[
R evidence that the Applicants presented in the 1982 hearings, 9
10 $
which is when the Hamilton matter'was litigated, was directly d
i 11 f
to the coint of whether'the condition was safe or unsafe or i.
12 h not.'
I 13 And so, I think the Aoplicants directly i
14 rebutted, or attempted to rebut, the point of Mr. Hamilton I
15,
going up on the polar crane rail was-unsafe'from an OSHA l
i 16 standpoint.
I think the evidence came in and, you know, i
i 17 the Board decided not to accept that evidence.
i l
18 But the question of intimidation and the
)
i 19 reason why Mr. Hamilton was sent up there, the fact that j
i i
20 other people had been sent up there--
or, had been asked 21 to go up there and they refused and they weren't terminated, that was not an issue at the time that we litigated that.
22 23 That only occurred in the 1983 time frame, long after the 24 hearings on Hamilton and the presentation of evidence on w.
25 those points had been closed.
1
.________________o
38,681 1
As far as the question of lateness, you will 2
recall that once the Board started talking about Mr.. Hamilton 3
and had' concluded in its mind that there was intimidation 4
and we had these motions for reconsideration, the tenor of 5
the proceeding changed so that we split the' intimidation 6
issues off from the technical issues.
7 And as you'll recall, that was mainly a 8
question of OI-reports started coming out.
As early as l
9 September, I recall all the parties agreeing that we would i
i 10 not talk about intimidation at all.
No one would be l
litigating intimidation until such time as the Board said:
11 12 Yes, we are now ready to go forward on intimidation.
i 13 That time for litigating intimidation has 14 come now at the deposition, and that's why the Staff l
l believes that it was appropriate for the Applicants to 15 i
16 wait until this time to present that evidence.
l 17 MR. DOWNEY:
Your Honor, this is Bruce I
I i
18 Downey.
I have two additional points to make.
{
j I
i 19 i
The first point is with respect to the l
-1 20 lateness of the issue at the time the Board rendered its 21 earlier decision.
22 Mr. Hamilton's alleg0tions were, in no way, i
i 23 different from any of the other allegations that were 24 raised by--
allegations of intimidation and harassment-25 raised by the other witnesses CASE called on technical issues, i
_.._..._______________________a
l 38',682 1
who included the harassment allegation in their affidavit.
2 And among those,~are the Stiners.
Among 3
those, are Mr. Miles.
And a number of other people who 4
appeared in these proceedings and who were noticed to appear 5
in these proceedings but failed to do so, 6
So, Mr. Hamilton's situation is only anomalous 7
l.becausetheBoard,withouthearingevidencefromthe j
8 l Applicant, rendered a decision on his claim.
9 JUDGE BLOCH:
Was there an opportunity to l
10 move to strike the portions dealing with intimidation?
Is i
11 it in the record, or wast:'t it in the record?
12 l MR. DOWNEY:
As I recall it, Your Honor, it-13 l
was in some written testimony.
It wag a' paragraph or two i
s l
in some written testimony of some--
of many pages that 14 15 focused on Mr. Hamilton's technical concerns.
16 JUDGE BLOCH:
In the record.
And, therefore, i
17 what you're telling ee is that you could have lost more l
l i
18 l
sweepingly than you lost because we could have ruled on j
19 those other claims also?
i l
l 1
20 MR. DOWNEY:
Your Honor, I don't know what--
1 21 I'm fairly new to the proceedings, so I don't know at what 22 point the parties and the Board decid?d that the intimidation i
1 23 issue would be litigated separately.
I don't know--
24 JUDGE BLOCH:
It was much after this because 25 it was after I joined the case, and the testimony was
38,683 1
recieved before I joined the case.
- 2
-Now, if you can find a specific cite that 3
supports your point that there-was a ground rule established, 4
that we were. limiting our concerns earlier to certain things, 5
that certainly would be helpful.
l 6
Although, I think you're probably most likely }
)
l I
7 l to be able to succeed if you can show gross unfairness based,
j i
8 on your offer-of proof, i
9 MR. DOWNEY:
Your Honor, I would add a second 10 l point that--
11 JUDGE BLOCH:
Still on the reconsideration 12 motion?
13 MR. DOWNEY:
Yes.
1 14 l
JUDGE BLOCH:
We've already established the i
I I
method for dealing with that, so don 't bother with. the other 15 :
l
)
16 1 point.
If it has to be in your offer of proof, out it in i
17
- there, i
lb But I'd like to point out that you are f
19 focusing on what is not in the case, and.you have' failed m
to acknowledge what is in the case, and we stated that 21 clearly, also.
1 22 What is in the case is the significance of 23 the firing of Mr. Hamilton, which will depend on.the 24 knowledge of the officials of the company of that incident'
.+
l 25 and what they did to try to find out what was happening and a
________J
p 38,684 1
what their beliefs were about what was-happening, so that 2
we'll be able to evaluate whether-that' reflects adversely l
L l
1 3
~l on the company's program and whether intimidation was per-
)
4 mitted by the company.
j 5
i MR. DOWNEY: 'Your Honor,-the problem I have a
6 with the context point is that any evidentiary showing from 7
our side would go forward from an erroneous assumption.,
f j
i 1
i 8
~
The assumption of context evidence.is we 1
9 i
somehow did something wrong'when,.indeed, in.my -judgment, j
i 10 the facts show that we did precisely what any reasonable 1
11 employer would do under the circumstances.
i I
12 JUDGE BLOCH:
But those were the beliefs of 1
13 the employers, and they found out about the facts.
What i
14 we're going to be litigating here is'what they knew about it i
i 15 and what they be_ieved about it.
f 4
[
And, you know, even if it was true that Mr.
ir t
l l
17 Hamilton was discharged improperly, it doesn't necessarily 18 i
follow that the people who were the officials of the company t
i 19 were wrong in believing the opposite.
20 MR. DOWNEY:
Your Honor, we certainly do intend, 21 as part of our evidence on this point, to show that the 22 managers involved personally inspected the polar crane rail, 23 personally reached the judgment that it was safe, reached 24 that judgment on the basis that the painters were working 25 off the rail, that other inspectors h,ad been working in this
~38,685 l
1 area, including those who were ultimately terminated. for 2
refusing, on this occasion, to go up on the rail, and 3
beyond that, that the officials and managers involved in these terminations had the safety officials from the plant 4
.5 come at the time of the refusal to make.the inspections, 6
called the safety officials to investigate the--
i I
7 ji JUDGE BLOCH:
That's part of the issue.
i 8
MR. DOWNEY:
--the polar crane rail, and l
9 concluded, based on their own investigation, their obser-l vations of the work of the inspectors and the painters 10 during the same time frame in the same area, and based on 11 the findings of the safety officer of the plant, concluded 12 i
that the refusal to.make the inspection was unreasonable.
13 I
I4 l'
And after.giving these gentlemen two or, i
i 15 I
perhaps, three or four, opportunities to follow the proper l
16 direction of their superiors after their insistent refusal i
i, 17 to do that, they were terminated.
j 18 That's, basically, what I would see as our i
19 context evidence.
l i
20 JUDGE BLOCH:
Mr. Downey, that's interesting i
21 testimony and interesting statement of the testimony.
In j
22
- f. se t, we understood that already.
23 The problem is that it's not a full answer.
1 24 It depends on what they did or.did not know about the.
25 allegations.. hat there was intimidation involved, that is, i
38,686 I 1
that Mr. Hamilton had been reporting things that made people 2
feel uncomfortable, that they didn't know anything about 3
that, they couldn't' respond to that.
But if they should 4
have known about that, or if they did know about that, then.
5 you need an explanation of what they knew and why they did 6
what they did, so that whether or not there really was some.
7 other reason, in addition to the fact that.he may have 8
refused-to work'in an unsafe place or_whether that was a 9 f pretext or a partial explanation of what was happening.
l That's what you've got to address in your l
10 i i
i 11 testimony, 12 MR. DOWNEY:
Well, we certainly will address I
13 that point, Your Honor, because so far as we are aware, i
14 Mr. Hamilton raised no such claims until after he was fired.
15 JUDGE BLOCH:
Okay.
If that's what was i
1 h
known, and the Applicants, the people, didn't know anything l
16 17 about that at that time and it had nothing to do with 18 their determination, that will be your evidence.
19 MR. DOWNEY:
We will then proceed, Your 20 Honor, with the offer of proof on the points that we fairly 21 feel go to the merits of Mr. Hamilton's refusal to walk 22 the--
to make the inspection and, in addition, present in
{
-j 23 evidentiary form, testimony of managers and offials who 24 were personally involved in Mr. Hamilton's decision, the i
25 decision to terminate him, and their testimony about what, 1
1 s
.i
38,687-
{
1 if anything,-I think the answer is nothing, they_ knew about l
2 any alleged concerns that Mr. Hamilton might have.
3 JUDGE BLOCH:
Okay.
And along with that, 4
you might present your position on whether there was, in 5
fact, something in the record that Applicant believe that 6
there were--
that there was testimony and evidence in the-7 record t$ hat they would not have to respond to.
i 8
(
I still don't know what the specific repre-
~
l l
sentations to the Board were that made them think-that I
9 i
10 these matters would not be part of a case.
l 11 MR. DOWNEY:
Your Honor, since I was not 12 involved in the case at the time, 1 think it would be pre-13 mature for me to respond to that request now, and will do 14 so in writing.
I 15 l
JUDGE BLOCH:
You think you can file it along 16 with the offer of proof?
l 17 MR. DOWNEY:
Yes, Your Honor.
18 JUDGE BLOCH:
Incidentally, if you' find that 19 it was a mistake, you might just acknowledge that it was a 20 mistake, but ask that we reconsider anyway.
l X
21 MR. DOWNEY:
Your Honor, it if was a mistake, i
1 22 wetll be the first to admit that we made one.
{
4 l
\\
23 JUDGE BLOCH:
Okay.
Is there anything else 24 to this conference?-
I 1
j 25 MR. ROISMAN:
Mr. Chairman, this is Mr.
1 1
38,688 1
Roisman.
2 I just want to be clear.
Mr. Downey had 3-indicated that he was going to make his proffer by having 4
one of the Court Reporters here record it.
It is not my 5
intention that we would have any lawyer present'at.that.
6 I don't have any concern with what'he says to a Court l
Reporter or how he makes the proffer, but whatever the l
7 i
8 Court Reporter proffers, he must serve it on us--
whatever i
9 i
the Court Reporter writes down, and we don't have to wait 10 !
two weeks to see it in the Public Document Room.
)
11 1
JUDGE BLOCH:
Is that a problem, Mr. Downey?
12 i
MR. DOWNEY:
No, we would--
My contemplation 13 i would be, Your Honor, that we would draft a'short motion, t
l and attach'ed to that m'otion the evidence that we intended 14 j
',I 15 to offer to the Board as an exhibit or in'some other way j
l 16 that would identify it.
t l
17 And that, as all other papers in-this i
18 proceeding, would be served on the parties.
19 JUDGE BLOCH:
Mr. Downey, that was a long 20 "yes".
Thank you for it.
21 Any other necessary business?
22 MR. MIZUNO:
Chairman Bloch, I just want to 23 notify you that we may be calling you in the next day or 21 two to talk about the testimony of Dennis'Culton.
25 JUDGE BLOCH:
liell, okay.
We're notified.
38,689 t
1 MR. MIZUNO:
Okay.
- Fine,
~
i 2
MR. ROISMAN:
Mr.. Chairman.
4 3
JUDGE BLOCH:
Yes.
1 4
MR. ROISMAN:
I just want to be clear that 5
we have an evidentiary hearing with the Board present now 4
6 scheduled for the week of the 27th of August; is that 7
correct?
8 JUDGE BLOCH:
You scheduled it for then.
l The first two weeks will be at the Americana.
Thereafter, 9
y 1
i t
we have scheduled two reserve weeks following that, i
to 11 Now, I'm going to have to issue a. notice I
12 stating the exact dates.
But if you want to hold on, I 13 think I can get that for you,from my' secretary.
We'll do 14 that after the conference is concluded.
15 l MR. ROISMAN:
All right.
Thank you.
l 16 JUDGE BLOCH:
Are there any other necessary I
17 matters?
1 18 MR. DOWNEY:
None from the Applicant, Your 19 Honor.
I 20 JUDGE BLOCH:
There being none, the hearing i
21 is adjourned.
22 (whereupon,.at 10:23 a.m.,
the telephone 23 conference in the above-entitled matter was concluded.)
24 p., a,.i c.
l I
25 0- =
_ _l
i CERTIFICATE OF PROCEEDINGS i
i i
1 This is to certify that the attached proceedings before the 2,
NRC COMMISSION 3
In the matter of:
Telephone Conference a!
Date of Proceeding:
July 31, 1984 Place of Proceeding: Glen Rose, Texas 6
were held as herein appears, and that-this is the criginal.
7 transcript for the file of the Commission.
B 9
d Sandra Harden 10 Official Reporter - Typed 11 if l
LvAiv /
d&w -
'3j' Off'icial Reporter - Signatur-14 15 I
le 17 18 19 i
20 21 22 l
23
.i 24 1
25 l 1
q TAYLOE ASSOCIATES REGISTERED PROFESSIONAL REPORTERS
-A
[h{
9.:
r
' MICHAEL L. 'SPEKTER
'. ATTORNEY AT1.AW SUITE 1802 "
1717 K STREET. N.W. -
WASHINC foN. D C. 20006 -
III.EPHONE: (202) 223-8132 August 20, 1984
))[ C AMER A Mark Davidson,;Esq.
Bishop, Liberman, Cook, Purcell'& Reynolds 1200 17th Street, N'.W.
Washington, D.C.
20036 Dear Mark-
~
In reference to your letter of' August 20,.1984,.I v.21d like to respond to your allegations and requests ofsfurther' discovery.-
Initially, Witness F and I agreed to make.every attempt' 't o locate the documents which'you requested, and which ' appear as attachment A'to my-letter of August 15, 1984.. Witness F has-made.
every attempt to provide the documents on1that attachment,
'and has provided every document which'he has~beens a b'l e to11ocate-:on2 my attachment.
I will ask him to attempt.toLlook_for and.provideL any additional documents co'ntained in;your letter, and:~which were not included on my~11'st,
. which'was drafted during;the haste of the deposition.
As you haveEindicated that my discovery request- 'for-all documents in your possession regarding~ Witness F is3 vague, I
thought that it had been clarified, and will do-so again at this time,-
to include all of the documents in my attachment:l'ist,-and all of the 16 documents which you had requested and which are listed in your letter.
Ac far as any further discovery regerding Witness-F, aside from what has been outlined above, I will not subject my client to any futher discovery in the absence of an Order from the Board directing my client to provide any.further discovery.
Additionally, as far as my, client's cross' examination is
. concerned, I
will direct him to answer no further
. questions
-regarding his military record, nor any prior employment,. absent an-Order from the. Board requiring him to do so.
Witness F's submitted record of his Court Martial, and his
~
y prior employment history more than satisfy.any civilized demands L
of1discove'ry.
j,
))
^!,
.u; s:
Davidson/ August.20, 1984
-)
3 l
Additionally, if.:you wish to-seek'toscrossiexamine him on-any-matters outside the scope of.my direct examination, I
will
- q direct him'not-to answer unless.I.have' received-an Order 1from the Board.
{
Singerely,-
r
,- l [jkL
.}:
Michael L.
Spekter cc: all persons on; service list (Encl.
Mark L; Davidson letter of: August 20, 1984) l l
I
.]
-l t
i M'
'l'
4 AW OrriC E S Of
- ClOHOP LIBERMAN. COOK. PURCELL & REYNOLDS 6200 SCvCNTEENTM S T R E CT. N. WJ IN NEW YORn !-~
' WASHINGTON, D C 2 0036 elsMOP, ListnMAN & COOK igon) e57 geoo.
. 46 DmOADWAY Ntw vonn 'NEw vonn 40004 '
trtu 44os>A NTLAW Ut (E t2) 248 6900 '
tcLes anars7-August'20, 1984
. HAND DELI'IERED.
1:1chael L.
Spekter, Esquire e
Suite 1102 I'7 1 7 ' K S t r os? t,
N.W.
Weshington, D.C.-20036
Dear Mike:
-As you know, we reached'severa1laqreements.during-
-witness F' es deposition regarding.documentiproduction. !You
-and he promised to produce the' requested documents within a week following that deposition,'namely July 27, 1984.
Des-pite these assurances and our subsequent conversations, no-locuments were produced until August.15, 1984, and at'tha't time only two of the 19 documents that had been requested were produced.
None of the following documents ere included-in witness P's tardy production:
(1)
The DCA wri tten against ES-100; (2)
Memo or: note of conversation with Gibbs & Hill employee who refused to sign-off on DCA against ES-100; (J)
Start-up memo. generated on December 19, 1983 con-cerning the alleged ES-100/ Reg.' Guide'1.75Lcon-flict; (4)
Two TDRs written on the ferroresonant trans-formers; (5)
TDR re: failure.of.a third. transformer;.
l (6)
Start-up memos re: 'ferroresonant. transformers;-
(7)
Reg. Guide used~in the preparation of.F's affi-
. davit:
L (8)
Reg. Guide used in preparation of. December 19, 1983~startup memo'concerning the a1leged-ES-
'100/1.75 conflict; (9)' Two earlier drafts'of witness F's affidavit;
..ho-r.____
__________.__________.____.___.__a____._.____
.m
___s_
i i
Michael L.
Spekter, Esquire Page 2 August 20, 1984
)
(10)
Letter of instruct. ion given to witness F con-cerning the preliminary draf t of his affidavit; (l1)
All Westinghouse responses to sta rtup memo on trans form.+ rs ;
(12)
Notes of telephone conference with Westinghouse representative; (13)
Notes memorializing witness F's conversation with Miller concerning XCP-EE8; (14)
Gibbs & Hill resnonse to the start-up memo re ES-100; (15)
Cover sheet to Gibbs & Hill memo; and (16)
Witness F's notes used in preparation of the affi-davit section concerning thermal expansion tests on piping.
This failure to produce is all the more troublesome because witness F testi fied that he believed he had some of the doci..aen ts in his posnession.
For example, Witness F testi-j fled that he bel.ieve.1 he had in his possession two earlier dra f ts of his. lune 27 a f fidavit, and a letter of instroetion from GAP.
Discovery Deposition of Witness F, 07/19/94 at 27.
At a minimum, it is incumbent upon you to explain why the docun."Ps, in wi.tness F't poonessi.on t.h ree shart weeks igo, have not been produced as previously sgreed.
As surely you can onderstand, your offer to have witness F search his files for ciny speci fic document th a t' I enasider to be "oi solutely erocial" does not satisfy the ibliga t ion to produce the doennents requested.
Moreover, I ennsider all the requasted dacuments to be " absolutely 4.' l' d e i e l 1. "
Beyond the failure to produce the requested docu-ments, you make several.insumptions regarding the documents to which I cannot subscribe.
Your " understanding" that witness F will not be cross-examined regarding his Court Martial proceedings and the contonts of the Court Martial Trial Record does not reflect my understanding, nor do I, at this time, intend to reach such an understanding.
As you know, you and 1 are presently in the process of trying to reach a stipulation on witness F's veracity, credibility, and background.
The stipulation is designed to accommodate your concern, which I believe un-l Founded, that exposure of witness F's identity in this pro-ceeding would be damaging.
In any event, I cannot reach a prodent understanding regarding the use of any evidence
{
until discovery is completed, nor can I agree at this time to restrict my client's'right to cross-examination.
1
- y., o ;,
p l Michael L.
Spekter, Esquire Page 3 August 20, 1984' In addition, the documents that you did produce raise new questions about witness F's naval record and
. employment history, questions which may necessitate additional discovery.
These. questions, however, may be answered by,the documents you have failed to= produce.
My decision to seek-further discovery thus must awaitLa review of the unproduced documents..Accordingly, I cannot state
-that discovery is. complete until we have reviewedLall the documents you agreed to produce.
You indicate that.Greg Berry of. the NRC Staff hasi failed to comply with your discovery request concerning the updates of Reg. Guid:3 1.75.
While I hardly'think that is~a
- matter to address to the Applicant, my understanding'is that there.have been no utslates or revisions of that Reg. Guide since 1975.
Witness F's testimony to the e mtrary-was either confused or misleading.
Final ly, you sta te that you look forward to re-ceiving the Applicant's response to your discovery request.
You r+3uest may be proper, but in its present form --: "all-of the documents which you had in your-ponsession and which
. pertained to my client" -- the request-is unreasonably vague.
Only when you particularize your request or provide me with a reasonable description of the denied documents, can I respond promptly to your request.
Please let me know as soon as possible how your client intends to satisfy Applicant's discovery demands and fulfill the agreements between us because time is growing short.
I will be available tomorrow in my office to discuss the matter.
Sincerely, j
s lt;
. hw. l r.
t<. ;
<g :
s Mark L.
Davidson MLD:ll i
I 4
i j
i
')
- -_